1 Montesquieu himself speaks of “distributed powers” (pouvoirs distributés) (XI.7) not “separate powers.” In fact, the balance of power established by a moderate constitution presupposes a certain interaction between powers, such as the executive right to veto legislative decisions, rather than a strict separation. Montesquieu does notintend an absolute separation of powers, but the common terminology of separate powers forcefully captures one of the distinctive elements in his constitutional teaching, which is why it has been so widely applied to his work. This article follows that general usage, but the reader should be aware of the limits of the label. For further discussion of the terminology of “separate powers” as applied to Montesquieu's philosophy, see for example, Goyard-Fabre, Simone, La philosophie du droit de Montesquieu (Paris: Librairie C. Klincksieck, 1973)Google Scholar; Eisenmann, Charles, “L'Esprit des lois et la séparation des pouvoirs” in Cahiers de philosophie politique (Reims: Université de Reims, 1985)Google Scholar; Dedieu, Joseph, Montesquieu et la tradition politique anglaise en France (New York: Burt Franklin, 1970)Google Scholar; Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967)Google Scholar; and Gwyn, W. B., The Meaning of the Separation of Powers (The Hague: Nijhoff, 1965)Google Scholar. Mosher, Michael also discusses this point in “Sovereignty and its Supplement in European Monarchy,” chapter 4 in Montesquieu's Human Science: Essays on The Spirit of Laws, ed. Carrithers, David, Mosher, Michael, and Rahe, Paul (Lanham, MD: Rowman and littlefield, forthcoming).Google Scholar

2 See, for example, Starobinski, Jean,Montesquieu (Paris: Éditions du Seuil, 1953), p. 67Google Scholar; Fletcher, F. T. H., Montesquieu and English Politics (London: Edward Arnold and CO., 1939), p. 107Google Scholar; Ilbert, Courtney, Montesquieu (Oxford: Clarendon Press, 1904), p. 32Google Scholar; Gay, Peter, The Enlightenment: An Interpretation (New York: Knopf, 1969), 2: 470Google Scholar; Lynch, Andrew J., “Montesquieu and the Ecclesiastical Critics of L'Esprit des Lois,” Journal of the History of Ideas 38 (3) (1977): 487–500CrossRefGoogle Scholar; and Pangle, Thomas, Montesquieu's Philosophy of Liberalism (Chicago: University of Chicago Press, 1973), pp. 163,160,228.Google Scholar

3 Several recent treatments have drawn attention to the serious nature of Montesquieu's reservations about England, although none has explored in detail the full scope of their meaning. See, for example, Baker, Keith Michael, Inventing the French Revolution (Cambridge: Cambridge University Press, 1990), pp. 173–79CrossRefGoogle Scholar; Boesche, Roger, “Fear Monarchs and Merchants: Montesquieu's Two Theories of Despotism,” Western Political Quarterly 43 (4) (1990): 741–62CrossRefGoogle Scholar; Rahe, Paul A., “Forms of Government: Structure, Principle, Object and Aim,” in Montesquieu's Human ScienceGoogle Scholar; Merry, Henry J., Montesquieu's System of Natural Government (W. Lafayette, IN: Purdue University Studies, 1970), pp. 313, 339Google Scholar; and Paul Carrese, “Montesquieu's Moderate Constitutionalism,” Panel Paper for the American Political Science Association Annual Meeting, Atlanta, GA, 2–5 September 1999, p. 21. Additionally, Anne Cohler and Diana Schuab have both noted that the English regime as Montesquieu presents it entails certain losses with respect to individual character, although neither one pursues this theme in detail. See Cohler, Anne M., Montesquieu's Comparative Politics and the Spirit of American Constitutionalism (Lawrence, KS: University of Kansas Press, 1988), p. 180ffGoogle Scholar; and Schaub, Diana J., Erotic Liberalism: Women and Revolution in Montesquieu's Persian Letters (Lanham, MD: Rowman and Littlefield, 1995), p. 143.Google Scholar

4 de Montesquieu, Charles-Louis de Secondat baron de la Brède et, The Spirit of the Laws, Book I, chapter 3, in Oeuvres complètes de Montesquieu, ed. Caillois, Roger (Paris: Pléiade, 1949–1951), vol IGoogle Scholar. Translations are my own although I have not hesitated to borrow phrasing from previous translations of The Spirit of the Laws where I found I could not do better myself, including those of Cohler, Anne, Miller, Basia Carolyn, and Stone, Harold Samuel (Cambridge: Cambridge University Press, 1989)Google Scholar and Thomas Nugent (New York: Hafner, 1949). Hereafter references to The Spirit of the Laws will be inserted parenthetically into the text with capital roman numerals indicating book and arabic numerals indicating chapter.

5 Melvin Richter emphasizes the importance of understanding the legal structure of the English constitution in the larger context of rapports that Montesquieu develops throughout The Spirit of the Laws, saying that “a legalistic interpretation of Montesquieu [on England] is indefensible” (Richter, , The Political Theory of Montesquieu [Cambridge: Cambridge University Press, 1977], p. 84Google Scholar). Neumann, Franz makes a similar point in Neumann, , ed., The Spirit of the Laws, trans. Thomas Nugent (New York: Hafner, 1949), p. lxiv.Google Scholar

6 Montesquieu's definition of liberty emphasizes personal security rather than the activity of self-government, the protection not the perfection of the individual. For references to liberty as security in The Spirit of the Laws, see, for example, XI.6; XII.5; XII.12; XII.23; XIII.7; and XIX.6. For discussion of the idea of liberty as security rather than collective self-rule in Montesquieu, see Hampson, Norman, Will and Circumstance: Montesquieu, Rousseau and the French Revolution (London: Duckworth, 1983), p. 10Google Scholar; Knee, Philip, “La question d I'appartenance: Montesquieu, Rousseau et la révolution française,” Canadian Journal of Political Science 22 (2) (1989): 303CrossRefGoogle Scholar; Ford, Franklin, Robe and Sword: The Regrouping of the French Aristocracy after Louis XIV (Cambridge, MA: Harvard University Press, 1953), p. 20Google Scholar; and Keohane, Nannerl O., Phibsophy and the State in France (Princeton: Princeton University Press, 1980), p. 418CrossRefGoogle Scholar and “Virtuous Republics and Glorious Monarchies: Two Models in Montesquieu's Political Thought,” Political Studies, 20 (1972): 392.Google Scholar

7 For discussion of the functional separation of powers and the system of checks and balances, see Courtney, C. P., “Montesquieu and English Liberty” in Montesquieu's Human Science.Google Scholar

8 There are three exceptions to the system of jurors drawn from the body of the people: (1) nobles must be judged before that part of the legislative body composed of nobles; (2) when the law is judged to be too rigorous in certain cases, the same part of the legislative body drawn from the nobles should convene as a special tribunal; and (3) when the defendant is accused of having violated the rights of the people in matters of public business, the popular branch of the legislature should pose the accusation to the nobles, who then pass judgment (XI.6).

9 For further discussion of the themes of judging and punishment in Montesquieu, see Carrithers, David W., “Montesquieu's Philosophy of Punishment,” History of Political Thought 19 (1998): 213–40Google Scholar; and Carrese, “Montesquieu's Moderate Constitutionalism,” especially section 4.

10 The popular body's faculty of enacting legislation includes “the right to order by oneself, or to correct that which has been ordered by another” (XI.6). In other words, the faculty of enacting entails the faculty of vetoing.

11 Another indication that Montesquieu regards England as a republic rather than a monarchy is the association he draws between the English constitution and James Harrington's republican Oceana in the final paragraph of XI.6. Montesquieu criticizes Harrington for what he considers to be Harrington's utopianism, but implies that the material of the republican regime Harrington sought (or the basis for a practical example of a republican government) was in fact to be found “before his eyes” in England. For an interesting treatment of Montesquieu's remarks on Harrington, and more generally Montesquieu's effort to “find” a constitution of liberty in the “historical facts” rather than seeking “imagined republics,” see Manent, Pierre, The City of Man, trans. LePain, Marc A. (Princeton: Princeton University Press, 1998), pp. 13–15.Google Scholar

12 On this point, see also Rahe, , “Forms of Government”; and Pangle, , Montesquieu's Philosophy of Liberalism, especially pp. 114–17.Google Scholar

13 The historical accuracy of Montesquieu's account of the constitution of England has been the subject of debate, partly because it exaggerates the independence of the judicial power as it existed in England at the time and partly because it ignores the English practice of cabinet government. Aside from these departures, however, the account is largely true to the formal legal structure of the English constitution in the first part of the eighteenth century. For discussion of the historical accuracy of Montesquieu's description of the English constitution, see, for example, Dedieu, J., Montesquieu et la tradition politique anglaise en France (New York: Burt Franklin, 1909), p. 228Google Scholar; Dodds, Muriel, Les recits de voyages, sources de L'esprit des lois de Montesquieu (Paris: Presses Modernes, 1929), p. 31Google Scholar; Berlin, Isaiah, “Montesquieu,” in Against the Current (New York: Viking, 1980), p. 131Google Scholar; Plamenatz, John, Man and Society (New York: McGraw-Hill, 1963), 1: 285f, 288Google Scholar; C. P. Courtney, “Montesquieu and English Liberty”; Green, F.C., Eighteenth-Century France (London: J.M. Dent and sons, 1929), pp. 194–221Google Scholar; Carrithers, David, “Introduction” to The Spirit of the Laws, ed. Carrithers, David (Berkeley: University of California Press, 1977), p. 81Google Scholar; Merry, , Montesquieu's System of Natural Government, pp. 341–45Google Scholar; and Ilbert, , Montesquieu, pp. 23, 31–6Google Scholar. Those debates are beyond the scope of this analysis, however. For present purposes the crucial question is how (according to Montesquieu) the legal structure of separate powers in the English constitution fits together with the spirit of the regime as a whole, including especially the character of the people and the social order.

14 In fact, the primary meaning of the word at the end of the seventeenth century was “to have possession of a thing”. See Dictionnaire François (Geneve: Jean Herman Widerhold, 1680), p. 440.Google Scholar

15 Jouir is used in a similar way in XIX.2, where Montesquieu says that “liberty has seemed insufferable to peoples who have not been accustomed to enjoying it. Thus it is that pure air sometimes is harmful to those who have lived in swampy countries”. To “enjoy” liberty here means exercising it, not simply taking pleasure in it. A similar usage occurs in XIX.27, where Montesquieu says that “in order to enjoy liberty, it is necessary that each be able to say what he thinks”.

16 Sorel emphasizes the theme of moderation in The Spirit of the Laws in Sorel, Albert, Montesquieu, trans. Anderson, Melville B. and Anderson, Edward Playfair (Chicago: A.C. McClurg and Co., 1888), p. 83Google Scholar; and see Loirette, Gabriel, “Montesquieu et le problème, en France, du bon gouvernement”, in Actes du Congrès Montesquieu réuni à Bordeaux du 23 aw 26 mai 1955 pour comémorer la deuxième centenair de la mort de Montesquieu (Bordeaux: Impriméries Delmas, 1956), pp. 234, 239.Google Scholar

17 Carrese draws attention to this passage and connects it to what Montesquieu calls the “extreme” political liberty of file English in “Montesquieu's Moderate Constitutionalism”, p. 21.

18 Carrese also notes Montesquieu's emphasis on the danger of too zealously protecting individual liberty and forsaking moderation (ibid. p. 17). Carrese's own emphasis throughout the paper is on moderation through the proper exercise of the power of judging, however, and in this respect his analysis pursues a different course from the one offered here.

19 Dictionnaire François, p. 220. The same edition defines monstre as “an animal that is born with parts much larger or much smaller than they naturally ought to be (naturellement elles ne doivent être). An animal that is born with more parts than nature requires” (p. 47).

20 Most commentators agree that Montesquieu was not, strictly speaking, a natural law theorist. See, for example, Shackleton, Robert, Montesquieu: A Critical Biography (Oxford: Oxford University Press, 1961), p. 250ffGoogle Scholar; Benrekassa, GeorgesMontesquieu: La liberté et I'histoire (Paris: Librairie Générale Française, 1987), p. 175Google Scholar; Goyard-Fabre, Simone, La philosophie du droit de Montesquieu (Paris: Librairie C. Klincksieck, 1973), especially pp. 54–55Google Scholar; Hulliung, Mark, Montesquieu and the Old Regime (Berkeley: University of California Press, 1976), p. 19Google Scholar; Ehrard, Jean, “Presentation”, in Politique de Montesquieu (Paris: Armand Colin, 1965), p. 10 fGoogle Scholar; Jones, Robert Alun, “Ambivalent Cartesians: Durkheim, Montesquieu and Method”, American Journal of Sociology, 100 (July): 13 and 29fGoogle Scholar; Durkheim, Emile, Montesquieu and Rousseau: Forerunners of Sociology, trans. Manheim, Ralph (Ann Arbor: University of Michigan Press, 1966)Google Scholar; Mosher, Michael, “The Particulars of a Universal Politics: Hegel's Adaptation of Montesquieu's Typology”, American Political Science Review 78 (March):178–188Google Scholar; Cohler, , Montesquieu's Comparative Politics, p. 48Google Scholar; and Knee, , “La question”, pp. 285–311Google Scholar. Anotable exception to the standard view can be found in Waddicor, Mark, who characterizes Montesquieu as a natural law theorist in Montesquieu and the Philosophy of Natural Law (The Hague: Martinus Nijhoff, 1970).CrossRefGoogle Scholar

21 He seems to have the treatment of Catholics in mind here. See Carrese, , “Montesquieu's Moderate Constitutionalism”, p. 21.Google Scholar

22 On the shared genealogy of England and France, see Carcassone, E., Montesquieu et le problème de la constitution française au XVIlIe siècle (Paris: Les Presses Universitaires, 1926), pp. 86, 88Google Scholar; Vlachos, G. C., La politique de Montesquieu (Paris: 00C9;ditions Montchretien, 1974), p. 35Google Scholar; Michael Mosher, “Sovereignty and its Supplement,”; and Ehrard, , “Présentation”, p. 33.Google Scholar

23 Baker, , Inventing the French Revolution, p. 177.Google Scholar

24 For further discussion of honor in Montesquieu's traditional monarchy, see Mosher, , “The Judgmental Gaze of European Women”, Political Theory, 22 (1994), especially pp. 38–40CrossRefGoogle Scholar; Mosher, “Sovereignty and its Supplement,”; and Krause, Sharon, “The Politics of Distinction and Disobedience: Honor and the Defense of Liberty in Montesquieu”, Polity 31 (1999): 469–99.CrossRefGoogle Scholar

25 Mosher, “Sovereignty and its Supplement”.

26 ibid.

27 Pangle, , Montesquieu's Philosophy of Liberalism, p. 217.Google Scholar

28 The critical tone of some of Montesquieu's remarks on modern commercial character has been noted by other readers, but frequently it is treated solely in aesthetic terms. Thus Pangle points to the lack of “a sociable humor with its gaiety and grace”, which results from the “single-minded and narrow commercial spirit”, in Montesquieu's Philosophy of Liberalism, p. 220. For similar treatments, seeSchaub, , Erotic Liberalism, p. 143Google Scholar; Cohler, , Montesquieu's Comparative Politics, p. 180fGoogle Scholar; Carrese, , “Montesquieu's Moderate Constitutionalism”, p. 21Google Scholar; Courtney, “Montesquieu and English Liberty”; and Rahe, “Forms of Government”. In addition to aesthetic considerations, however, the potential dangers to the separation of powers posed by the commercial features of English character are important, but they have been largely; overlooked. Rahe, for example, maintains that Montesqueiu thought commercial ambition a fully sufficient support for the separation of powers. See his “Forms of Government”.

29 Thus as Judith Shklar points out, “education has no public function here, even though all other regimes depend on the appropriate training of subjects”. See her Ordinary Vices (Cambridge, MA: Harvard University Press, 1984), p. 219.Google Scholar

30 Hereafter the French indépendence will be used to refer to the subjectivism that Montesquieu associates with the English character in XIX.27 so as to distinguish this meaning from common contemporary usage and from Montesquieu's own references to the more moderate and more noble forms of independence that he so much admires.

31 Rahe discusses the motive of fear in England, saying that “the ‘principle’of the modern republic is⃛something very much like fear”, in “Forms of Government”. Baker agrees that “fear and insecurity ⃛ seem to emerge as the virtual principle of English government” (Inventing the French Revolution, p. 175).

32 See Courtney's “Montesquieu and English Liberty”. For the same reason, Rahe maintains that England is not a despotism even though it has “an undeniable kinship with despotism” (“Forms of Government”).

33 In fact, as Schaub puts it, “fear, the principle of despotism, is the primordial incarnation of self-interest”. See her Erotic Liberalism, p. 136. Self-interest also has hope attached to it, of course. In moderate regimes, the hope of securing one's interests may be more predominant than the fear of seeing them dashed. Selfinterest cannot simply be reduced to fear but the implicit connection between them is crucial to understanding both despotic government and the English regime.

34 For extensive discussion on this point, see Boesche, “Fearing Monarchs and Merchants”, p. 759. For more general discussion of the theme of despotism in Montesquieu, see for example, Françoise Weil, “Montesquieu et le despotisme”, in Actes du congrès Montesquieu; Kassem, Badreddine, Décadence et absolutism dans I'oeuvre de Montesquieu (Paris: Librairie Minard, 1960)Google Scholar; Grosrichard, Alain, Structure du seérail: La fiction du despotisme asiatique dans l'ccident classique (Paris: ÉEditions du seuil, 1979)Google Scholar; Shackleton, Robert, “Le mots ‘despot’ et ‘despotisme’“, in Essays on Montesquieu and on the Enlightenment, ed. Gilson, David and Smith, Martin (Oxford: Voltaire Foundation, 1988)Google Scholar; Richter, Melvin, “Montesquieu's Comparative Analysis of Europe and Asia: Intended and Unintended Consequences” and “Asia as Seen by the French Enlightenment”, in L'Europe de Montesquieu (Napoli: Liguori Editore, 1995)Google Scholar; Young, David, “Montesquieu's View of Despotism and his Use of Travel Literature”, Review of Politics 40 (3) (1978)CrossRefGoogle Scholar; and Krause, Sharon, “Despotism in The Spirit of Laws”, in Montesquieu's Human Science.Google Scholar

35 Mansfield, Harvey C. Jr, Taming the Prince (New York: Free Press, 1989), p. 240Google Scholar; see alsoShklar, Judith, Montesquieu (Oxford: Oxford University Press, 1987), p. 104.Google Scholar

36 Referring to the same practice, Montesquieu remarks in unpublished writings that “the English do not deserve their liberty. They sell it to the king; and if the king should return it to them, they would sell it to him again”. Montesquieu, “Notes sur I'Angleterre”, Pléiade, I, p. 880.

37 It is true that in XIX.27 Montesquieu remarks that England as a nation sometimes may “sacrifice its goods, its ease, and its interests” to defend “its liberty” (for example by accepting “harsh imposts”), but here he seems to be referring to the national defense rather than to the protection of individual liberties. And on the following page he speaks of the “many people” in England who, precisely because of “excessive imposts”, would “exile themselves and go to seek abundance even in countries of servitude”. In other words, the English sometimes may sacrifice their interests for the national defense but they also have been known to abandon their nation—the only one that has political liberty for its direct object—for the sake of profit, even to live under despotic governments.

38 It is worth noting briefly that Montesquieu is more skeptical than some other Enlightenment thinkers, such as Voltaire, about the power of individual reason to limit the exercise of political power. It is true that The Spirit of Laws aims to enlighten us on political matters by disclosing to us the fruits of Montesquieu's reasoning and by engaging our reason. And Montesquieu believes that political power cannot be limited without reason, since a constitution of separate powers is the product of reason, even a “masterpiece” of reason (V.14). Yet in his view the proper role of reason is to clarify the most effective external constraints, or mechanisms, for limiting power. And the motivating principles of all regimes are described by Montesquieu as “passions,” not as forms of reason. Individual reason cannot simply replace the mechanisms of good government or the passions that set them in motion because reason is not fully reliable as a check on individual action. Thus Montesquieu opposes the idea of enlightened despotism on the grounds that when reason is left alone to check individual actions (as it was for Voltaire's enlightened despot) the overwhelming tendency is for enlightenment to lose out to despotism, as the enlightened Usbek in Persian Letters illustrates (see Shklar, Montesquieu p. 33)Google Scholar. For references to the limits of reason in politics, see The Spirit of the Laws, XIX.27, XXIX.19, IV.8, and XI.6.

39 Mosher, “Sovereignty and its Supplement in European Monarchy”.

40 Thus Plamenatz has observed that for Montesquieu “the power of every government is limited in two ways: by the manner in which it is distributed among the persons who exercise it and by the traditions and beliefs on which authority rests” (Man and Society, p. 276). In a similar vein, Publius emphasized the American government's need for “the veneration” of the American people in order to secure the liberties promised by the proposed Constitution of separate powers: “In a nation of philosophers⃛ a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side”. (Madison, James, Hamilton, Alexander, Jay, John, The Federalist Papers, ed. Rossiter, Clinton [New York: Penguin, 1961], pp. 315, 314)Google Scholar. Likewise, Marc Duconseil has remarked that without a measure of reverence for its authority, a political constitution is little more than “a dome of vapor”. See his Machiavel et Montesquieu: Recherche sur un principe d'autorité (Paris: Les Édition Denoël, 1943), p. 172.Google Scholar

41 Montesquieu, , “De la politique”, Pléiade, I, p. 112–13.Google Scholar

42 ibid., p. 113.

43 Montesquieu, , Mes pensées, 595 (1302), Pléiade, I, p. 1113Google Scholar. This passage was drawn to my attention by Mosher in “Sovereignty and its Supplement”.

44 Montesquieu, , Mes pensées, 1663 (75), Pléiade, I, p. 1400.Google Scholar

45 Merry, for example, notes that for Montesquieu “class representation is essential to a political system if it is to reflect and protect the natural inclinations of man in a differentiated society” (Merry, , Montesquieu's System of Natural Government, p. 240Google Scholar). On the same point, see Mathiez, Albert, “La place de Montesquieu dans I'histoire des doctrines politiques du XVIII siècle”, in Annales historiques de la révolution française (Paris: Dawson-France, 1930), vol. 7, p. 109Google Scholar; Kassem, , Décadence et absolutisme, p. 149fGoogle Scholar; Cohler, , Montesquieu's Comparative Politics, p. 118Google Scholar; Carrese, , “Montesquieu's Moderate Constitutionalism”, p. 3Google Scholar; Dedieu, , Montesquieu et la tradition politique anglaise en France, p. 170Google Scholar; and Spitz, , Essays in the Liberal Idea of Freedom, p. 34f.Google Scholar

46 Or at least male property owners could hold such offices.

47 Pangle, , Montesquieu's Philosophy of Liberalism, p. 129.Google Scholar

48 According to Pangle, Montesquieu “admits that this” [i.e., the movement toward social homogeneity] is a great weakness of the English constitution” (ibid., p. 130; see also p. 298). Although Pangle acknowledges Montesquieu's reservations about England in these passages, however, in general he understates the seriousness of those reservations. Elsewhere, for example, he maintains that Montesquieu regarded the English system as “the polestar in political affairs” (p. 160) and the “best regime” simply (p. 163; see also p. 228).

49 Cohler notes the affinity between this insight and Tocqueville's description of democratic individualism in Montesquieu's Comparative Politics, p. 180ff.

50 Emile Faguet discusses intermediary bodies as sources of resistance to encroaching political power in Lapolitique comparée de Montesquieu, Rousseau et Voltaire (Paris: Socieété Françhise d'Imprimerie et de Librairie, 1902), especially pp. 43–52.Google Scholar